MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT

Patricia Mikes, M.D., a former employee of Defendants Marc
Straus, M.D., Jeffrey Ambinder, M.D., and Eliot Friedman, M.D.,
brought an action following her termination as qui tam relator
and as plaintiff in her individual capacity against Defendants
under the False Claims Act, 31 U.S.C. § 3729 et seq. (1994)
("FCA") for (1) submission of fraudulent Medicare claims based on
improperly performed spirometry tests, (2) use of false records
of spirometry tests to obtain Medicare reimbursement, and (3)
conspiracy by Defendants to defraud the Government by filing
false Medicare claims. Defendants counterclaimed for extortion.
Defendants have moved for summary judgment on Mikes's FCA claims,
and Mikes has cross-moved for partial summary judgment on the
first two elements of her FCA claims. For the reasons that
follow, Defendants' motion is granted in its entirety.

Background

Defendants are physicians licensed in New York who specialize
in oncology and hematology. In or around 1991, Defendants formed
Pulmonary and Critical Care Associates ("PCCA"), a medical
practice with a focus on treatment of pulmonary, or lung-related,
conditions, which maintains offices in various locations in
Westchester and Putnam Counties. Mikes, a pulmonologist, was
employed by PCCA beginning on or about July 1, 1991, and was
based in PCCA's White Plains office. She was hired pursuant to an
employment contract, which allowed PCCA to terminate her with or
without cause, and provided that cause included failure to
maintain consulting and admitting privileges at local hospitals.

Mikes avers that in the fall of 1991, she met with Defendant
Straus to express her concerns about the administration of
spirometry tests, which are used to measure the speed and volume
at which patients can exhale, to patients at PCCA.*fn1
Specifically, Mikes alleges that she told Straus that the test
results might not be accurate because the equipment was not being
calibrated using a three-liter syringe or checked for calibration
on a daily basis and after being moved, as per the recommendation
of the American Thoracic Society (ATS). She further claims that
she voiced her worry to Straus over the fact that the tests were
being performed by foreign medical school graduates, employed as
medical assistants, who she felt were inadequately trained to
perform the tests. Mikes also claims that she requested that PCCA
purchase a calibration syringe for the purpose of ensuring the
accuracy of spirometry tests, and offered to train the medical
assistants who carried out the tests.

Mikes brought the present action on April 16, 1992. The case
comes before this Court following a lengthy procedural history.
In May 1994, Mikes's original five-count complaint, including
claims for unwarranted and improperly performed spirometry and
Magnetic Resonance Imaging (MRI) tests under the FCA, retaliatory
discharge under the FCA and New York Labor Law, and unpaid wages
under the New York Labor Law, was dismissed by Judge Broderick of
this Court for, inter alia, failing to plead fraud with
particularity pursuant to Fed.R.Civ.P. 9(b). See United States
ex rel. Mikes v. Straus, 853 F. Supp. 115, 117 (S.D.N.Y. 1994).
Mikes then filed a First Amended Complaint containing the same
claims, and Defendants moved again to dismiss under Fed.R.Civ.P.
9(b) and 12(b)(6), or alternatively, to compel arbitration. In
June 1995, Judge Conner, to whom the case had been reassigned,
converted Defendants' motion sua sponte into a motion for
summary judgment. Emphasizing the procedural posture of the case,
the Court stated that it did not expect Mikes to be able to
detail every aspect of Defendants' alleged FCA violations prior
to discovery, and concluded that Mikes's affidavit outlining
Defendants' overuse and negligent administration of spirometry
tests was sufficient for her to avoid summary judgment on her
fraud claims under the FCA at that stage of the litigation. See
Mikes, 889 F. Supp. 746, 751-52. Judge Conner also ordered
arbitration of Mikes's state claims as well as her retaliatory
discharge claim under the FCA. See id. at 755-57. In March
1996, Mikes filed a Second Amended Complaint reiterating her
allegations with respect to the performance of spirometry and MRI
tests by Defendants. Following various other motions relating to
Defendants' affirmative defenses and counterclaims and extension
of discovery, Mikes filed a Supplemental Complaint in July 1999,
in which she withdrew her claims relating to MRI tests. The
Supplemental Complaint alleges that Defendants filed for Medicare
reimbursements for spirometry tests that were knowingly (a)
performed in an inappropriate and improper manner by untrained
and unsupervised medical assistants; (b) performed on equipment
that was not calibrated, such that a reasonable person would know
that useless and inaccurate results would be obtained; and (c)
performed when the condition of the patient did not warrant its
administration. (Mikes Supp. Cmplt. at 11-12.) The case was
reassigned to me shortly after the filing of the Supplemental
Complaint. On August 17, 1999, the U.S. Attorney gave notice to
the Court of its intention not to intervene in the action.

In their Answer to Mikes's Second Amended Complaint, Defendants
asserted a counterclaim against Mikes for extortion on the basis
of her FCA suit. As of October 13, 1999, Mikes had not filed a
responsive pleading with respect to the counterclaim, and on that
date Defendants filed a Motion for Entry of Default under
Fed.R.Civ.P. 55(a), which was denied at oral argument before this
Court on October 29, 1999.

The FCA, as amended, imposes liability on any person who (1)
"knowingly presents, or causes to be presented, to . . . the
United States Government . . . a false or fraudulent claim for
payment or approval, (2) `knowingly makes, uses, or causes to be
made or used, a false record or statement to get a false or
fraudulent claim paid or approved by the Government,'" or (3)
conspires to defraud the Government by getting a false or
fraudulent claim allowed or paid. 31 U.S.C. § 3729(a)(1)-(3). The
statute defines "knowingly" as meaning that an individual has
"actual knowledge" of the information, acts in "deliberate
ignorance" of the truth or falsity of the information, or acts in
"reckless disregard" of the truth or falsity of the information,
and provides that "no proof of specific intent to defraud is
required." § 3729(b)(1)-(3). A private individual — the qui tam
relator — may bring an action for a violation of § 3729 on his or
her own behalf as well as that of the Government. See §
3730(b)(1).

To prevail on a claim under § 3729(a)(1), a relator must
establish four things: (1) the defendant presented or caused to
be presented a claim to the United States for payment or
approval; (2) the claim was false or fraudulent; (3) the
defendant knew the claim was false or fraudulent; and (4) the
United States suffered damages as a result of the false or
fraudulent claim. See Blusal Meats, Inc. v. United States,
638 F. Supp. 824, 827 (S.D.N.Y. 1986) (stating elements of same claim
under pre-amendment subsection), aff'd, 817 F.2d 1007 (2d Cir.
1987). Similarly, a plaintiff bringing a claim under § 3729(a)(2)
must show that (1) the defendant made or used, or caused to be
used, a record or statement to get a claim against the United
States paid or approved; (2) the record or statement and the
claim it supported were both false or fraudulent; and (3) the
defendant knew that the record or statement and the claim it
supported were false or fraudulent, and (4) the United States
suffered damages as a result of the false or fraudulent claim.
See id. Finally, to satisfy the elements of a conspiracy to
defraud claim under § 3729(a)(3), a plaintiff is required to
demonstrate that (1) the defendant conspired with one or more
persons to get a false or fraudulent claim allowed or paid by the
United States, (2) one or more conspirators performed any act to
effect the object of the conspiracy, and (3) the United States
has suffered damages as a result of the false or fraudulent
claim. See id. at 828.

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